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Blecker: Make It Hurt, Baby

New York Law School crimlaw prof Robert Blecker wrote a book that apparently says we’ve become a society of wimps, afraid to punish the worst of the worst in the way “justice” demands. Naturally, that means he had to pen an op-ed about it for CNN.

No matter how vicious the crime, no matter how vile the criminal, some death penalty opponents feel certain that nobody can ever deserve to die — even if that person burned children alive, massacred a dozen strangers in a movie theater, or bombed the Boston Marathon. Other opponents admit the worst of the worst of the worst do deserve to die. They just distrust the government ever to get it right.

Not the best explanation of those who disagree with him, but serviceable in a shallow sort of way.

Let the punishment fit the crime. We’ve mouthed that credo for centuries, but do we really mean it? We retributivists who believe in justice would reward those who bring us pleasure, but punish severely those who sadistically or wantonly cause us pain. A basic retributive measure — like for like or giving a person a taste of his own medicine — satisfies our deepest instincts for justice.

Right to the point, Blecker contends that we humans have some burning desire, deep within us, to want those who inflict pain to suffer pain in return.

An unpleasant life in prison, a quick but painful death cannot erase the harm. But it can help restore a moral balance.

Whenever anyone uses a phrase like “moral balance,” I feel a sudden urge to check his religious dipstick. Morality is a great argument in the sense that it can’t be subject to rational scrutiny because there is nothing rational about it. If that’s what a guy believes, then that’s what he believes. Just like Fred Phelps at the Westboro Baptist Church believes gays are immoral.

But Blecker leads no congregation of religious fanatics. He’s a law professor. As such, the minds of inchoate lawyers are left in his hands for a few hours each week, to be molded and shaped. Is he teaching criminal law to these impressionable law students based upon his personal moral imperatives?

Yet, Blecker’s next point, unfortunately based on his shaky foundation of natural instincts and moral balance, raises a better question:

I, too, oppose lethal injection, but not because these untried new drugs might arbitrarily cause pain, but because they certainly cause confusion.

Lethal injection conflates punishment with medicine.

It’s sanitary. It’s painless. It’s better than anyone being executed deserves. That’s Blecker’s objection. But as he notes, the same issues he raises resonate with those who take the complete opposite view.

For those of us who pay attention to such matters and people being executed as a punishment for their crimes, the question isn’t merely do they deserve to die or not. We see the broader, deeper concerns of society doubling down on death, one evil compounded by a second evil.

We see a deeply flawed system that can, and has, executed the innocent, and a court of last resort that is too busy trying to play computer games to concern itself. We see no foolproof way to distinguish between those who Blecker contends deserve to die an awful and painful death from those who don’t, and unlike Blecker, we’re not okay with that.

And some of us don’t really have that deep yearning to inflict pain on others, despite Blecker’s personal view that it’s a basic human instinct. How this didn’t get Blecker a picture in the DSM-V and a blurb all to himself remains a mystery.

But it’s made me consider whether the issue would be best brought to a head by putting executions on the television, prime-time, hosted by someone who used to be on MTV, so that all the agnostics who are kinda for it without having to give themselves headaches by thinking too hard can watch it in high-definition.

But if the show was just death by lethal injection, then Blecker’s complaint, that it’s too much like medicine, would indeed cause confusion. Teenage girls wouldn’t know whether they tuned into a good killing or Grey’s Anatomy, and could change channels if they didn’t see Dr. McSteamy.

There is some merit to the argument that, if you’re going to execute a person because he has done something so horrible, so vile, that he deserves to die, then he deserves to die in an awful manner. What’s the point of retribution if it doesn’t hurt? It’s all about payback, and the release of the worst of human instinct. Who better to inflict pain upon than someone we can all agree is so utterly vile by his own hand?

But Blecker thinks this will be embraced by people, cheered by adoring fans who will make American Execution top-rated in its time period.

Rest assured, when we can only achieve justice by killing a vicious killer, We, the People will find a constitutional way to do it.

I think better of us. Of course, it would break my heart to find out that Blecker was right. And I’m not 100% certain that we would be so disgusted, so repulsed, by watching a vicious, violent execution that we would end the evil we perpetrate as a society on the worst of our own.

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13 comments on “Blecker: Make It Hurt, Baby”

“Rest assured, when we can only achieve justice by killing a vicious killer, We, the People (sic) will find a constitutional way to do it.”

Some of us reject that “justice” ever requires slaughter. IMHO, the death penalty isn’t wrong because the convicted criminal doesn’t deserve such punishment, it’s wrong because we as a society should strive to transcend the visceral desire for vengeance. Much of the rest of the world eschews the death penalty and life there seems to go on. Further, I certainly don’t want people like most elected prosecutors to have the power to decide against whom the State seeks the death penalty.

As for the means, whatever the government does ought be out in the open for all to see (excepting only things whose publication would itself risk lives, like troop movements in wartime).

My objection to the death penalty is very simple. The legal system is run by people. People make mistakes. Therefore, no matter how many safeguards are put in place, if a death penalty exists, it is inevitable that the State will execute innocent men. The only way to avoid this is to not execute people in the first place.

The mob wants, as it has for millennia, its bread and circus. Though, I am curious how Blecker and other ‘retributivists’ view of vengeance works when the state murders someone who is totally innocent, as you brought up. Whether it is through lethal injection due to prosecutorial misconduct or something as mundane as the police just bouncing your head off the steps a few times – how does he prescribe we get vengeance for that? Do we kill the prosecutor or cop? Or perhaps there is no vengeance against the state? (TBH, I doubt there would be an answer and I would just get called a wimp who wants to coddle criminals).

More Importantly: “Whenever anyone uses a phrase like “moral balance,” I feel a sudden urge to check his religious dipstick.”
I was really tempted to ask “how do you check a religious dipstick?” but really…I just don’t want to know… I would much rather that remain a mystery.

Sorry. To expand on my comment, I don’t see why a law professor can’t see the problem I described. Inflicting a horrible death on an innocent is not a moral action under any system of morality I’ve encountered, and so what Blecker is proposing is a moral inbalance, by his own definitions.

However, public executions have been a entertainment spectacle (err… ‘moral example’) within living memory, so I’m afraid Blecker is right in this regard. Although I’m not sure the State should return to encouraging such callousness in people.

The only sense, if you can call it that, that I can make of Blecker’s drivel is that he sincerely believes that we are a nation of murderers, whose only rational response to killing is more killing. Worse still, we are incapable of ever rising above being a nation of murderers, since any showing of compassion or mercy would be injustice, rather than enlightenment. As such, any consideration of the fact that the system makes mistakes – resulting in the killing of the innocent – or of the possibility that executing a killer might impose some external societal cost – making an-eye-for-an-eye something other than a zero-sum game – is an exercise in self-denial, for to do so is to abandon any notion of justice.

Not only is this utter idiocy, predicated on his unsupported a priori assumption that only retributive killing can “satisf[y] our deepest instincts for justice,” it is a dangerous attitude which posits that people are nothing more than the sum of their actions, such that if they do something bad enough in Blecker’s eyes, they are no longer worthy of being treated as humans. This man has no business teaching anything to anyone.

Anger and responsibility seem to lie everywhere elsewhere — that is, nowhere. And where we cannot fully escape responsibility — as with a firing squad — we diffuse it.

Anger can lie in whoever wishes it, but responsibility should be specifc. Justice is first a virtue we should pursue in our own lives. Since I wish to live in a just society I am willing to help (within the bounds of what is just) so that those who are due restitution receive it. But when Mr. Blecker is due his portion of retribution, my responsibility ends. I expect him to take responsibility for collecting it. He has no claim on me to participate in this, and I have no wish to pay for his bullets. In other words, he can form a firing squad of one.

Mr. Blecker should understand that if a better understanding of the justice of his retribution arises, his responsibility has been clearly established.

In the event of my own death as a victim of crime, my heirs should recognize that they have no duty of retribution. Taking heed of those who admonish ‘drink responsibly’, I have made preparations in advance. If those prove insufficient, or go unexcercised it happens by my considered choice. Mr. Blecker has no reason to pursue retribution on my behalf.

I suspect Blecker doesn’t believe anybody like you exists, or if you do, you’re some weird mutant. He suffers from the spotlight effect, thinking himself normal and the bar by which humanity is judged.

Scott H. Greenfield

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SHG